Fordham’s Institute on Religion, Law & Lawyers’ Work will host a lecture, “‘Who is a Jew’: Israeli Law versus the Press,” on February 19. The speaker, Professor Yifat Holzman-Gazit, will discuss a 2005 Israeli High Court decision on the validity of non-Orthodox conversions to Judaism performed outside Israel. Details are here.
Romocea, “Church and State”
Last month, Bloomsbury Publishing published Church and State: Religious Nationalism and State Identification in Post-Communist Romania by Cristian Romocea (Evandeoski Teoloski Fakultet Osijek, Croatia). The publisher’s description follows.
Twenty years have passed since the fall of the Iron Curtain, yet emerging democracies continue to struggle with a secular state which does not give preference to churches as major political players. This book explores the nationalist inclinations of an Eastern Orthodox Church as it interacts with a politically immature yet decisively democratic Eastern European state. Discussing the birth pangs of extreme nationalist movements of the twentieth century, it offers a creative retelling of the ideological idiosyncrasies which have characterized Marxist Communism and Nazism. Cristian Romocea provides a constant juxtaposition of the ideological movements as they interacted and affected organized religion, at times seeking to remove it, assimilate it or even imitate it. Of interest to historians, theologians and politicians, this book introduces the reader, through a case study of Romania, to relevant and contemporary challenges churches worldwide are facing in a context characterized by increased secularization of the state and radicalization of religion.
Baer, “The Struggle of Hungarian Lutherans under Communism”
Last Month, Texas A&M University Press published The Struggle of Hungarian Lutherans under Communism by H. David Baer (Texas Lutheran University). The publisher’s description follows.
What does a religious community do when confronted by a political regime determined to eliminate a religion? Under communism, Hungary’s persecuted Lutheran Church tried desperately to find a strategy for survival while remaining faithful to its Christian beliefs. Appealing to the Lutheran Confessions, many argued that the church can do whatever is necessary to survive provided it does not compromise on its essential ministry, while others appealing to the witness of the confessor Bishop Lajos Ordass argued that the church must uncompromisingly witness to the truth even if that means ecclesiological extinction.
In The Struggle of Hungarian Lutherans under Communism, H. David Baer draws upon the disciplines of theology, history, ethics, and politics to provide a comprehensive analysis of the different strategies developed by the church to preserve its integrity. Relying on previously unnoted archival documents and other primary sources, Baer has made a substantial contribution to Eastern European studies.
Vigorously written, his telling of the history is also a sensitive and moving account of courage and cowardice in the fact of religious persecution. This book should be of interest not only to students of religion in Eastern Europe but also to anyone concerned about the problems that arise wherever there is religious persecution.
Should Richard III Receive a Catholic Burial?
You thought there couldn’t be a law and religion angle to today’s news–fascinating for us history nerds–that archaeologists have discovered the mortal remains of Richard III beneath a parking lot in Leicester? Think again. Plans are underway to re-inter the bones in the city’s Anglican Cathedral. Not so fast, say some: the hunchback king wasn’t a Protestant, but a Catholic, and he requires a Catholic burial. In fact, as Shakespeare fans know, Richard died at Bosworth Field (“A horse! A horse! My kingdom for a horse!”), defending his throne from Henry Tudor. Henry went on to reign as Henry VII; his son, Henry VIII, broke with Rome. As The Tablet’s blog argued this morning, “Had Richard prevailed at the Battle of Bosworth Field, there would have been no Henry VII, therefore no Henry VIII and no Reformation. England today might still be a Catholic country.” Think of it: no Reformation, no Established Church, no Archbishop Laud, no Puritans, no Great Migration — no Massachusetts! — and no Establishment Clause. Surely there’s a law review article in there somewhere.
Leicester Cathedral seems to know it’s facing a sensitive situation. A Catholic priest is keeping watch over Richard’s remains (as is an Anglican, I believe), and the cathedral is planning a “multifaith” burial ceremony. Personally, I’m not sure why English Catholics are so keen to claim Richard, anyway. They must be forgetting the nephews in the Tower.
Richard Epstein to Lecture on Natural Law (March 21)
I’ve always thought of natural law and law and economics as opposing schools of thought. Like Rick in Casablanca, I must have been misinformed. On March 21, law and economics scholar Richard Epstein will deliver the Spring 2013 Natural Law Colloquium Lecture at Fordham. Details are here.
Stabile on NLRB Jurisdiction over Religious Universities
Susan J. Stabile (U. of St. Thomas School of Law) has posted Blame It on Catholic Bishop: The Question of NLRB Jurisdiction over Religious Colleges and Universities. The abstract follows.
My focus in this Article is on how the National Labor Relations Board (the NLRB or the Board) determines whether to exercise jurisdiction over religious colleges and universities, subjecting them to the collective bargaining requirements of the National Labor Relations Act (the NLRA). The NLRB’s current approach is to examine whether the educational institution has a “substantial religious character,” in the absence of which it will exercise jurisdiction. As evidenced by two recent decisions by NLRB regional directors in cases involving efforts by adjunct faculty to form unions—one involving Saint Xavier College and one involving Manhattan College and both of which are currently on appeal to the full Board—the substantial religious character test is an unnecessarily intrusive one that substitutes the government’s views about what it means to be religious for the views of the institution and the religious community with which it is affiliated.
Section II of this Article gives a brief history of the NLRB’s approach to the exercise of jurisdiction over religious colleges and universities. Section III addresses the weakness of the NLRB’s substantial religious character test. Section IV addresses the central question of whether and under what circumstances the exercise of jurisdiction by NLRB over religious colleges and universities would create a risk of substantial entanglement. Finally, drawing from the conclusions of Section IV, Section V lays out some considerations to guide the NLRB in determining when it should exercise jurisdiction when employees of religious colleges and universities seek to unionize. Because both the Supreme Court guidance on this issue and the recent NLRB decisions have involved Catholic colleges and universities, they are the primary focus of this analysis. The analysis and conclusions, however, are intended to guide the NLRB’s approach to the exercise of jurisdiction over other religious colleges and universities as well.
Dilley & Palpant (Eds.), “Human Dignity in Bioethics”
Last December, Routledge published Human Dignity in Bioethics: From Worldviews to the Public Square (2012) edited by Stephen Dilley (St. Edward’s U.), and Nathan J. Palpant (U. of Washington). The publisher’s description follows.
Human Dignity in Bioethics brings together a collection of essays that rigorously examine the concept of human dignity from its metaphysical foundations to its polemical deployment in bioethical controversies. The volume falls into three parts, beginning with meta-level perspectives and moving to concrete applications.
Part 1 analyzes human dignity through a worldview lens, exploring the source and meaning of human dignity from naturalist, postmodernist, Protestant, and Catholic vantages, respectively, letting each side explain and defend its own conception. Part 2 moves from metaphysical moorings to key areas of macro-level influence: international politics, American law, and biological science. These chapters examine the legitimacy of the concept of dignity in documents by international political bodies, the role of dignity in American jurisprudence, and the implications—and challenges—for dignity posed by Darwinism. Part 3 shifts from macro-level topics to concrete applications by examining the rhetoric of human dignity in specific controversies: embryonic stem cell research, abortion, human-animal chimeras, euthanasia and palliative care, psychotropic drugs, and assisted reproductive technologies. Each chapter analyzes the rhetorical use of ‘human dignity’ by opposing camps, assessing the utility of the concept and whether a different concept or approach can be a more productive means of framing or guiding the debate.
Hearing at ECtHR in Spanish Church Autonomy Case
This has been a busy law-and-religion news week in the United States, but there was a major story at the European Court of Human Rights as well. On Wednesday, the Grand Chamber heard argument in Fernández Martínez v. Spain, a case that could have major implications for church autonomy in Europe.
Under the 1979 Concordat between Spain and the Holy See, public schools in Spain must offer optional classes in Catholicism. The instructors are public employees, but must be approved by local bishops. In Fernández Martínez, a public school refused to renew the contract of one such teacher, a married, laicized priest named José Fernández Martínez, after the local bishop voiced his objections. The bishop argued that Fernández Martínez had “given scandal,” an offense under canon law, by allowing himself to be photographed by a newspaper, along with his family, at a meeting of a group calling for optional priestly celibacy. Fernández Martínez claimed that the dismissal violated his rights to privacy, family life, and expression, but the Spanish Constitutional Court and, last May, a chamber of the ECtHR, disagreed. He then sought review in the Grand Chamber.
Wednesday’s hearing was interesting and, at times, fiery. The government presented the case as a straightforward matter of religious autonomy and state neutrality. The bishop had objected to Fernández Martínez on religious grounds, it explained; given the terms of the Concordat, the government had no choice but to defer. The government surely could not second-guess the bishop’s conclusion that someone charged with teaching Catholicism had violated religious law. The government emphasized that the Church did not have Read more
Proposed Tweaks to the Existing HHS Contraception/Abortifacient Mandate Regulations
I’m somewhat delayed (but only by a day) in posting this item about the Obama Administration’s proposed new regulation on this issue. Frankly, I waited because (a) I have a hard time understanding some of the bureaucrateze; (b) after mulling it over a little last night, I’m still not exactly sure what the proposed tweaks actually change; and (c) these tweaks are only proposed (something the headline of the New York Times story on the subject today misrepresents). The document is 80 pages, but for those looking to get a quick handle on it, I recommend focusing on roughly pp.18-31. That’s where most of the action is.
Rick Garnett and Tom Berg have some reactions to what the proposal does at Mirror of Justice. For summary purposes, their initial take, combined with some thoughts of my own, is that:
- The new regulation would not protect for-profit entities of whatever size. This seems clearly a correct reading. The proposed regulation says that “The Departments do not propose that the definition of eligible organization extend to for-profit secular employers. Religious accommodations in related areas of federal law, such as the exemption for religious organizations under Title VII of the Civil Rights Act of 1964, are available to nonprofit religious organizations but not to for-profit secular organizations. Accordingly, the Departments believe it would be appropriate to define eligible organization to include nonprofit religious organizations, but not to include for-profit secular organizations.” (P.23)
- As to non-profits, the situation changes in the following ways.
- First, on the issue of who gets covered as a “religious employer,” the Administration would remove language that would have permitted it to inquire about the institution’s “inculcation of religious values” and about whether the entity serves “primarily” co-religionists. Instead, there would be a reversion to IRS rules about who counts as a religious employer. And if you read pages 19-20, you will see that this definition is limited to those institutions that are “churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order.” Rick and Tom both believe that this definition would include “integrated” units of churches (for example, a soup kitchen or school actually operated by a church) but not independent faith-based non-profits (for example, Catholic Charities). The proposal states that using this definition would effectively cure all excessive entanglement problems. I am doubtful about this, but I do agree that some of the more egregious entanglement problems associated with the inquiries about “inculcation” and percentage of co-religionists would be cured. The government notes that it “welcome[s] comments on this proposal, including whether it would unduly expand the universe of employer plans that would qualify for the exemption and whether additional or different language is needed to clarify the scope of the exemption.”
- For those that do not qualify for the exemption above but that meet various criteria (see page 22 for the four part requirement, and also page 48), pursuant to the “accommodation” mentioned by the Administration at earlier points, it now appears that non-profits will have their insurers pay, and there will be some sort of certification by the insurer that the non-profit has not borne the cost of the coverage. It appears that this proposal would cover non-profit institutions like religiously affiliated universities, charities that do not qualify under 2(A), and so on. The language is: “the health insurance issuer providing group coverage in connection with the plan would assume sole responsibility, independent of the eligible organization and its plan, for providing contraceptive coverage without cost sharing, premium, fee, or other charge to plan participants and beneficiaries.” (23)
- How, one might wonder, does the government propose to require that the insurer not pass along the costs of this proposal to the insured? This is what the government says: the insurer must provide coverage that “is not included in the group policy, certificate, or contract of insurance; such coverage [must not] not [be] reflected in the group health insurance premium; and … no fee or other charge in connection with such coverage [must be] imposed on the eligible organization or its plan. The proposed rules would further direct the issuer receiving the copy of the selfcertification to provide contraceptive coverage under individual policies, certificates, or contracts of insurance (hereinafter referred to as individual health insurance policies) for plan participants and beneficiaries without cost sharing, premium, fee, or other charge.” The government states that this means that the coverage is provided at “no cost” to the objecting institutions, but for reasons that have been discussed earlier, that is subject to question. The proposal also includes the (to me) silly view — which the government has repeatedly advanced — that all of this will save the insurers money. If that were true, one can be sure that the insurers would have provided this coverage for free long ago.
- Finally, it is not clear to me exactly what the proposal does with respect to self-insured entities. The discussion begins at page 27, where the government states that it is “considering alternative approaches.” There is some discussion about the role of “third-party administrators” in such plans, but I am afraid that I just do not know enough about the way in which self-insured entities manage their affairs to know what this would mean. There is also language on this at page 67 which indicates that this issue has been “reserved.” Once I get a better sense of this issue, I may post something else.
It’s probably worth saying that these are proposals only subject to notice and comment. They aren’t the final rule. But they obviously give a pretty good idea about what the Administration’s plan is likely to be.
The Second Circuit’s Establishment Clause Jurisprudence of Desire
The Second Circuit has upheld the decision of a public school to forbid a student from closing a middle school speech with the following: “As we say our goodbyes and leave middle school behind, I say to you, may the Lord bless you and keep you; make His face shine upon you and be gracious to you; lift up His countenance upon you, and give you peace.” The student sued on free speech grounds, and the court concluded that though the restriction was content-based, because the standard in public schools is deferential to the school (“reasonably related to legitimate pedagogical concerns”), and notwithstanding the school’s need to come up with an “overriding” state interest, the school had done so here.
What was that “overriding” state interest “reasonably related to legitimate pedagogical concerns”? It was the school’s “desire to avoid violating the Establishment Clause.” But this was a student’s own decision, uninfluenced by the school (indeed, opposed by the school). That did not matter. So long as the government “desires” to avoid an Establishment Clause violation — whether the “desire” corresponds with what the Establishment Clause actually proscribes or not — that is sufficient to overcome what might otherwise be an actual violation of a constitutional right (irrespective, I take it, of anybody’s desires). But desires are tricky. People desire all sorts of things; sometimes those desires are constitutional, sometimes not, but I can’t think of another context in which a constitutional dispute really depends so heavily on the desires of one of the parties, whether or not those desires correspond to actual realities. But why not be more forthright? This decision has nothing to do with the Establishment Clause. It has to do with the school’s desire not to permit the religious language of the student’s speech. So why is it necessary to bloat the Establishment Clause this way? But the endorsement test put us on the path of Establishment Clause “desires” and “appearances” long ago.